Austrian DPA dismisses complaint concerning validity of Cookie Consent Solution

The Austrian Data Privacy Authority (“DPA”) decided on a complaint, lodged by an individual, concerning the compliance of the cookie consent solution of an Austrian newspaper with the General Data Protection Regulation (“GDPR”).

The complainant argued that the consent was not given voluntarily, since the website was no longer accessible after the revocation of consent to marketing cookies. Further use of the website required payment. Therefore, according to the complainant, provision of the service depends on consent to the processing of personal data.

The Austrian newspaper grants users free access to the content of the website, provided that they agree to the use of cookies for advertising purposes. If this consent is revoked, the website will no longer be usable and the window for giving consent will reappear. Alternatively, in the same window, users can choose to subscribe to a paid subscription. For currently 6 euros per month users get access to the entire content of the site, without data tracking.

The DPA explained that consent is only given involuntarily if a disadvantage is to be expected if consent is not given. Referring to Article 29 Working Party’s Guidelines on Consent, the DPA stated that such a disadvantage arises when there is a risk of deception, intimidation, coercion or significant adverse consequences. Yet there is no such disadvantage here. In fact, after giving consent, the user of the website even gains an advantage because he gets full access to the newspaper’s services. Furthermore, if the user does not wish to give his consent, he can still use another online newspaper.

With its decision, the Austrian DPA set a welcome signal for other online newspapers that finance themselves through advertising revenues.